More on prosecutorial discretion-and why discovery is important

When will they ever learn? Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.

But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.

Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.

Prosecutor Murray had ample time and opportunity to correct his lies and his falsification of the transcript, but instead, he let it go until defense counsel had encouraged his client to plead guilty based on this fabricated evidence. Not until after defense counsel requested the original tape recording from which the transcript was made did Mr. Murray admit that he had added the most incriminating statements to the transcript.

This is why broad and open discovery is necessary. When prosecutors (and investigators) believe that anything goes to put a person in jail, issues like this happen. I agree with the sentiment that most prosecutors and investigators don’t do this stuff. But unfortunately it happens enough that you have to be vigilant.